Citation Nr: 1310987 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 09-46 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a psychiatric disability to include major depressive disorder. ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1984 to January 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on her part is required. REMAND The Veterans Claim Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159 (2012). In essence, the Veteran alleges that she had the onset of depression in service (but did not seek psychiatric treatment therein because she believed such was primarily for persons with more acute psychiatric illness. She states that she reported the depression on examination for transfer from a duty station in Williamsburg Virginia. The service treatment records (STRs) currently associated with her record do not include the report of an examination when a history of depression was noted. The Veteran's mother has stated that upon discharge from service and since the Veteran has appeared to be a changed person. The record in this matter developed to date appears incomplete. First of all, it must be determined whether any service (medical or personnel) records (noting psychiatric complaints of treatment) remain outstanding, and if there is a suggestion that there might be outstanding records, they must be sought. Furthermore, while the record reflects that the Veteran has a well established diagnosis of depression/major depression, the records pertaining to the initial diagnosis/treatment for such disability are not associated with the record. As such records are likely to contain pertinent information, they must be sought. Finally, in light of the Veteran's mother's observation that the Veteran was changed upon her return from active duty development for any competent lay evidence pertaining to the Veteran's psychiatric disability is indicated. Also, VA's duty to assist includes providing for a VA examination/securing a medical opinion, when necessary. A VA examination is necessary in a service connection claim when: (1) There is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) there is evidence establishing that an event, injury, or disease occurred in service; (3) there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) there is otherwise insufficient competent evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to factor number 3 above, the United States Court of Appeals for Veterans Claims has stated that this element is a low threshold requirement. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record also shows that the Veteran was denied Social Security Administration (SSA) disability benefits because she was found to not be disabled. The medical records considered in connection with that determination are not associated with the claims file, but are constructively of record and must be secured. In addition, the record indicates that the Veteran receives VA treatment (records of which are not in the claims file or in Virtual VA, but are in the CAPRI system, not accessible to the Board). Such record also are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for the record the following: (a) Complete clinical records of all VA evaluations or treatment the Veteran has received for psychiatric disability since her discharge from service (records of which are not already associated with the record). (b) The medical records considered by SSA in their denial of the Veteran's claim for SSA disability benefits. If such records are unavailable, the reason must be noted in the record, and the Veteran should be notified. (c) Records of any private treatment the Veteran has received for psychiatric disability since service. She should be asked to identify any such treatment and provide releases for records of the treatment. If her initial diagnosis of depression/major depression was not from VA, records from the provider of the initial diagnosis must specifically be sought. (d) The Veteran should be asked to provide more specific information regarding the medical questionnaire she completed on duty station transfer, when she reportedly endorsed a history of depression, and such record must specifically be sought. If it is not secured, the scope of the search must be noted in the record. (e) The Veteran should be asked to provide any evidence bearing on the nature of the behavioral changes her mother observed upon her return from active duty, to include any supporting descriptions by laypersons familiar with the Veteran, any school counseling records, any records from employment/or rejections of employment for unsuitability, etc. 2. The RO should then arrange for the Veteran to be examined by an appropriate psychologist or psychiatrist to determine the nature and likely etiology of her psychiatric disability. The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination of the appellant, the examiner should respond to the questions below. (a) Please identify (by medical diagnosis) each psychiatric disability entity found. (b) As to each psychiatric disability entity diagnosed, please opine whether it is at least as likely as not (a 50% or better probability) that such entity is related to (was incurred or aggravated in) the Veteran's active duty service. The examiner must explain the rationale for all opinions. 4. The RO should then review the file, and readjudicate the Veteran's claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).